Citation Nr: 9929781
Decision Date: 10/18/99 Archive Date: 10/29/99
DOCKET NO. 97-32 522A ) DATE
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THE ISSUE
Whether an October 1976 decision of the Board of Veterans'
Appeals (Board) upholding a decision to sever service
connection for a psychiatric disability should be revised or
reversed on the grounds of clear and unmistakable error
(CUE).
(The issue of entitlement to an effective date prior to May
24, 1989, for the grant of service connection for
schizophrenia is addressed in a separate decision.)
REPRESENTATION
Moving Party Represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to
October 1968.
This matter comes before the Board of Veterans' Appeals
(Board) challenging the Board's October 1976 decision which
denied entitlement to restoration of service connection for a
psychiatric disability.
FINDINGS OF FACT
1. The Board finds that one or more statements submitted by
the veteran in support of his claim for an earlier effective
date for the grant of service connection for schizophrenia
constituted a motion seeking the Board's review of an October
1976 Board decision denying restoration of service connection
for a psychiatric disability, to determine whether the
October 1976 decision involved CUE.
2. On July 13, 1999, the veteran's service representative
filed a formal Motion for Revision or Motion to Vacate the
Board's October 1976 decision.
3. The veteran has failed to allege a sufficient error in
law or in fact that dictate a change in the Board's October
1976 decision.
CONCLUSION OF LAW
The Board's October 1976 decision upholding a Regional
Office's decision to sever service connection for a
psychiatric disability was not based on CUE, and as such, is
not subject to revision. 38 U.S.C.A. § 7111 (West 1991 &
Supp. 1999); 38 C.F.R. §§ 20.1403, 20.1404 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Motions for review of prior Board decisions on the grounds
CUE are adjudicated pursuant to the Board's Rules of
Practice. See 38 C.F.R. §§ 20.1400-20.1411 (1999). The
regulations provide that CUE is a very specific and rare kind
of error which compels the conclusion, to which reasonable
minds could not differ, that the result would have been
manifestly different but for the error. 38 C.F.R.
§ 20.1403(a) (1999). Generally, either the correct facts, as
they were known at the time, were not before the Board, or
the statutory and regulatory provisions were incorrectly
applied. Moreover, § 20.1404(b) provides that a motion
alleging CUE in a prior Board decision must set forth clearly
and specifically the alleged clear and unmistakable error, or
errors, of fact or law in the Board decision, the legal or
factual basis for such allegations, and why the result would
have been different but for the alleged error. Non-specific
allegations of failure to follow regulations or failure to
give due process, or any other general, non-specific
allegations of error, are insufficient to satisfy the
requirement of the previous sentence. Motions which fail to
comply with the requirements set forth in this paragraph
shall be denied. Examples of situations that are not CUE
include a change in diagnosis in order to correct a earlier
diagnosis considered in a Board decision, failure to fulfill
the duty to assist, a disagreement as to how facts were
weighed or evaluated, and a change in the statute or
regulation. 38 C.F.R. § 20.1403(d) (1999).
Historically, the RO granted entitlement to service
connection for anxiety reaction by rating decision dated in
August 1969, in part, because the veteran complained of
depression and excessive worry at the time of service
separation. A 10 percent evaluation was assigned effective
October 1968. By rating decision dated in August 1970, the
disability was recharacterized as paranoid schizophrenia and
a 70 percent evaluation was assigned. In January 1974, the
veteran was awarded individual employability.
During a routine review of the veteran's claims file, the RO
concluded that the initial grant of service connection was
CUE because the service medical records were completely
silent as to any complaint or treatment of a nervous
condition except as self-reported by the veteran in his
separation examination. The RO also noted that a diagnosis
of a psychosis was made more than one year after service
separation. It was noted that the psychoneurosis for which
service connection was assigned was not subject to the
presumptive period. As such, the RO proposed to sever
service connection for the veteran's nervous condition and,
in fact, severed service connection by rating decision dated
in July 1975. The Board upheld the severance of service
connection by decision dated in October 1976.
Turning first to the law on severance of service connection
at the time of the Board's October 1976 decision, it is noted
that severance of service connection under 38 C.F.R. § 3.105
was essentially identical to the current regulation.
Specifically, service connection could only be severed where
the evidence established that it was CUE (with the burden of
proof on the Government). A change in diagnosis could be
accepted as a basis for severance if the medical authority
certified that the diagnosis on which service connection was
predicated was clearly erroneous. When severance of service
connection was considered to be warranted, a rating decision
was to be prepared setting forth all material facts and
reasons, with the claimant notified at the latest address of
record of the contemplated action and given 60 days to
provide evidence that service connection should be
maintained. Thereafter, and assuming that no evidence was
received, a rating action would be issued and the award
discontinued effective the last day of the month in which the
60-day period expired. See 38 C.F.R. § 3.105 (1976).
In this case, the Board finds that the RO provided the
veteran with appropriate notice of the proposed severance of
service connection in a May 1975 rating decision. He was
given 60 days with which to respond and, in fact, submitted
additional evidence. The RO considered this evidence and,
nonetheless, severed service connection for a
neuropsychiatric disability effective August 1, 1975. The
veteran was given notice of both the proposed severance and
the rating decision actually severing service connection;
thus, the Board finds that the severance was procedurally in
accordance with the provisions of 38 C.F.R. § 3.105 in effect
at the time.
In a December 1975 personal hearing the veteran testified
that he was hospitalized in Vietnam for an epileptic seizure
but never had epilepsy. He related that he was treated for
combat fatigue, engaged in combat, witnessed death, and had a
nervous problem even when outside of the combat zone. His
wife testified that the veteran never had any problems prior
to entering into the military and was a completely changed
person when he was discharged. The veteran's representative
maintained, in essence, that the veteran was misdiagnosed
with epilepsy in service and, in fact, experienced a nervous
attack and that he had other symptoms associated with a
nervous condition in service. The representative concluded
that the veteran's benefits should not be denied.
By decision dated in October 1976, the Board concluded that
entitlement to restoration of service connection for a
psychiatric disability was not established. It was
essentially noted that there was no psychosis within the
presumptive period, no acquired psychiatric disorder in
service, and that the psychoneurosis shown within the first
postservice year was not subject to the one year presumption
of service connection. The issue before the Board was
essentially whether the August 1969 rating decision, which
granted service connection for anxiety was CUE. The Board
observed that the veteran's service medical records were
entirely negative for findings or diagnosis of a psychiatric
disorder, stressing that the in-service complaints of
headache, diarrhea, etc. were attributed to an organic
disability. The Board also pointed out that the veteran was
not treated for a psychiatric disability during the several
months he was stationed in the continental United States
prior to discharge. Moreover, the Board observed that his
separation examination reflected a normal psychiatric
evaluation. The Board concluded that the service clinical
records could not possibly serve as a basis for finding that
a psychiatric disability manifested in service. The Board
then reviewed the June 1969 VA psychiatric examination and
noted that a diagnosis of depressive reaction was made but
reflected that the report did not establish a connection
between the diagnosis of depressive reaction and military
service. Finally, the Board stressed that the veteran's
then-diagnosis of a psychosis was first clinically manifested
no earlier than April 1970, several months outside of the
presumptive period. Thus, the Board concluded, severance of
service connection for a psychiatric disorder was warranted.
The veteran now argues that the Board's October 1976 decision
was, itself, CUE. He asserts that the decision was erroneous
because (i) the Board failed to provide the requisite proof
necessary to legally sever service connection because it
erred in its application of the basic principles of service
connection by failing to consider continuity of
symptomatology, (ii) the evidence established that the
veteran's disability was incurred during service, and (iii)
the Board's 1993 decision granting service connection for
schizophrenia was based on essentially the same evidence
contained in the claims file at the time of the October 1976
decision.
Initially, in reviewing a prior Board decision for CUE, this
Board can only consider the record and the law that existed
at the time the prior decision was made. See 38 C.F.R.
§ 20.1403(b) (1999). Therefore, despite the veteran's
contention, this Board cannot consider the 1993 Board
decision granting service connection for schizophrenia as it
was, obviously, not part of the record at the time of the
Board's October 1976 decision. As noted above, such evidence
obtained after the Board decision being challenged cannot
form the basis of a valid CUE claim.
Further, the Board's rejects the veteran's suggestion that
his current diagnosis of schizophrenia should have been made
in October 1976 because the evidence on which the currently-
diagnosed schizophrenia was made is the same evidence
contained in the claims file in October 1976. There is
simply no medical opinion or other evidence indicating that a
diagnosis of schizophrenia, rather than depressive reaction,
should have been the correct diagnosis in 1976. In addition,
as noted above, a new medical diagnosis which "corrects" an
earlier diagnosis considered in a prior Board decision is not
considered CUE under the current regulations. See 38 C.F.R.
§ 20.1403(c) (1999). Thus, even if the veteran's diagnosis
should have been schizophrenia, the regulations do not
recognize the "corrected" diagnosis as CUE. The evidence
before the Board in 1976 reflected that the veteran was
diagnosed with a depressive reaction within a year of
service; however, the Board correctly noted that a diagnosis
of depressive reaction was not entitled to the one year
presumption. Moreover, the evidence before the Board in 1976
indicated that a diagnosis of paranoid schizophrenia, which
would have been entitled to the presumption, was not made
until April 1970, well outside the presumptive period.
Accordingly, there is no basis to find CUE in the Board's
1976 decision simply because the veteran is currently
diagnosed with schizophrenia or because the current diagnosis
is based, in part, on evidence contained in the claims file
in 1976.
The veteran next argues that the Board's 1976 decision was
CUE on the basis that the Board failed to recognize
continuity of symptomatology. Contrary to the veteran's
assertions, this Board finds that the 1976 Board reviewed all
the evidence contained in the claims file, including the
service medical records and post-service treatment, and
concluded, in essence, that the RO's earlier decision
granting service connection was in error, in part, because of
a lack of continuity of symptoms.
Under regulations in effect in 1976, continuity of
symptomatology was required only where the condition noted
during service (or in the presumptive period) was not, in
fact, shown to be chronic or where the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service was not adequately supported, then a
showing of continuity after discharge was required to support
the claim. See 38 C.F.R. § 3.303(b) (1976). In this case,
the 1976 Board noted that, except for statements made by the
veteran himself, there was no in-service evidence of a
psychiatric disability. Therefore, it was reasonable for the
1976 Board to conclude that there was no "condition" to be
noted during service. In addition, the 1976 Board noted that
the veteran was first diagnosed with a depressive reaction in
June 1969 but the diagnosis was not related to service, which
could further support a finding of no continuity of symptoms.
Finally, the 1976 Board observed that the veteran was not
diagnosed with a psychosis until April 1970, outside the
presumptive period, and the diagnosis was again not at that
time noted to be related to military service. Accordingly,
this Board finds that the 1976 Board could have reasonably
concluded that the veteran lacked continuity of
symptomatology and its October 1976 decision was not CUE.
The veteran also argues that the evidence contained in the
claims file in 1976 established that the veteran's disability
was incurred during service. It is clear to this Board that
the argument must fail. First, the 1976 Board correctly
points out that the veteran was never diagnosed with a
neuropsychiatric disorder in service, and there is no medical
evidence or opinion contained in the claims file to the
contrary. Except for one instance at the time of service
separation, when the veteran self-reported in the Report of
Medical History that he experienced depression or excessive
worry, there was no evidence of treatment for or a diagnosis
of a psychiatric disability contained in the service medical
records. Further, at the time of his initial psychiatric
diagnosis for a depressive reaction, the examiner did not
establish a connection between the diagnosis and military
service. In fact, the examiner noted that the veteran had
experienced serious post-service marital problems.
Similarly, none of the medical examiners attributed the
veteran's psychiatric disorder to military service. Thus,
this Board finds that the evidence as considered by the 1976
Board in upholding severance of service connection does not
rise to the level of CUE as the correct facts were known at
the time and the regulations were correctly applied.
While, based on subsequent evidence, it may be apparent that
the symptoms the veteran experienced shortly after service
separation ultimately lead to a grant of service connection
for schizophrenia, this Board must put itself in the shoes of
the 1976 Board and review no more of the evidence than was
associated with the claims file at the time. Weighing of the
evidence does not provide a basis for finding CUE. Given
that there was no confirmed diagnosis of a neuropsychiatric
diagnosis in service, that the veteran was diagnosed with a
psychiatric disorder but not a psychosis (depressive
reaction) within the one year presumptive period, and that
his schizophrenia was no diagnosed until some 18 months after
service separation there was no CUE in the severence of
service connection.
In conclusion, as the veteran has failed to properly allege
clear and unmistakable errors of fact or law in the Board's
October 1976 as defined by the criteria enumerated at
38 C.F.R. §§ 20.1403 and 20.1404 (1999), the Motion for
Revision or to Vacate of the Board's October 1976 decision is
denied.
ORDER
The Motion for Revision or to Vacate the Board's October 1976
decision on the grounds of clear and unmistakable error is
denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeal